NENKAYEV AND OTHERS v. RUSSIA

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 13737/03
by Moldi Nazhmudinovich NENKAYEV and Others
against Russia

The European Court of Human Rights (First Section), sitting on 20 March 2008 as a Chamber composed of:

Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Dean Spielmann,
Giorgio Malinverni, judges,
Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 24 March 2003,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants are relatives. They are:Mr Moldi Nazhmudinovich Nenkayev, born in 1952;Ms Zura Vakhayevna Nenkayeva, born in 1955;Mr Isa Moldiyevich Nenkayev, born in 1977;Mr Musa Moldiyevich Nenkayev, born in 1976;Mr Ruslan Moldiyevich Nenkayev, born in 1984;Mr Apti Moldiyevich Nenkayev, born in 1986;Mr Sulim Moldiyevich Nenkayev, born in 1990;Mr Islam Moldiyevich Nenkayev, born in 1993;Ms Iman Moldiyevna Nenkayeva, born in 1996;Ms Aminat Khasanovna Nenkayeva, born in 1982.

The applicants are Russian nationals and live in the town of Urus-Martan, Chechnya. They were represented before the Court by lawyers of the Stichting Russian Justice Initiative (“SRJI”), an NGO based in the Netherlands with a representative office in Russia. The respondent Government were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. Disappearance of Muslim Nenkayev

(a) The applicants’ account

i. Abduction of Muslim Nenkayev and the third applicant

The first two applicants are spouses and have eight children – the third to ninth applicants and Muslim Nenkayev, born in 1982. The tenth applicant is the fourth applicant’s wife. They live in a private house at 84 Pervomayskaya Street, Urus-Martan.

Shortly before the events described below Muslim Nenkayev had obtained employment at the Gudermes district office of the interior. In that connection he was subjected to a security check which established that no criminal proceedings had ever been instituted against him, he was not on a wanted list and had never participated in military actions.

On 8 June 2002, around 3 a.m., a group of about twenty-five or thirty masked men in camouflage uniforms forcibly entered the house of the Nenkayev family. They were armed with submachine guns with silencers and spoke Russian with no accent and a lot of swearwords. The men did not produce identity papers or any documents to justify their actions, but the applicants assumed that they belonged to the Russian military.

The first applicant, who was sleeping in his room, was awakened by a blow from a machine-gun butt on his leg. He saw several servicemen pointing machine guns at him. One of the servicemen was checking the first applicant’s passport, which he had left on a table. The soldiers asked the first applicant whether his name was Moldi Nenkayev and whether he had sons. The first applicant answered in the affirmative. Then the servicemen asked the first applicant whether he had sons named Musa, Isa and Muslim. The first applicant confirmed that he had. Thereafter one of the servicemen put his machine gun against the first applicant’s neck and escorted him to the courtyard and then to another entrance into the house of the Nenkayev family. The door was locked. One of the soldiers pushed the door-handle and broke it. The first applicant asked his relatives inside to open the door, and the sixth applicant did so.

The military came in escorting the first applicant in front of them and using him as a shield. About five soldiers entered a room in which the second and ninth applicants and the first applicant’s sister-in-law with her daughter were asleep. The servicemen ordered everyone to stay in bed, threatening them with their firearms, and conducted a search which lasted about an hour.

During the search the soldiers seized a duty machine gun belonging to the third applicant, who was an officer of the special police unit of the Chechen Republic. One of the servicemen attempted to take away the third applicant’s leather jacket but another officer ordered him to leave it.

Another group comprising about ten servicemen entered the room in which the fourth and tenth applicants were asleep. They forced the fourth applicant out into the corridor and ordered him to lie face down. The tenth applicant was ordered to put her hands behind her head and also lie down on the floor. Then the military searched the room and took away a leather waistcoat, a leather jacket, a gold ring and perfumes. The tenth applicant heard one of them telling another one to look for diamonds. Ten minutes later they left the room, having ordered the tenth applicant to stay down.

Several soldiers entered the room occupied by Muslim Nenkayev, the third, sixth, seventh and eighth applicants and the first applicant’s nephew. The servicemen asked for Muslim and Isa Nenkayev. When the two Nenkayev brothers identified themselves, the servicemen ordered them to get dressed and leave the room. The other Nenkayev family members were ordered not to move.

Thereafter the servicemen led the first, third and fourth applicants and Muslim Nenkayev into the corridor and, swearing and threatening them with machine guns, ordered them to lie down and keep still. The third applicant tried to explain that he was a police officer and inquired what authority the servicemen represented and why they had intruded into the Nenkayevs’ house. The servicemen left those questions unanswered.

The servicemen then declared that they would take away the third applicant and Muslim Nenkayev, and handcuffed and blindfolded them. The soldiers also covered Muslim Nenkayev’s mouth with adhesive tape. They further asked the third applicant whether he had any firearms. The latter replied that as a police officer he had a duty pistol and machine gun. The servicemen, who had already seized the third applicant’s duty machine gun, then took his pistol as well.

Thereafter the military ordered the fourth applicant to stay down and escorted the first and third applicants and Muslim Nenkayev out into the courtyard. When the fourth applicant enquired as to where his brothers would be taken, the soldiers stated that they were from the Urus-Martan military commander’s office and would take the detainees to a local police station.

In the courtyard the soldiers asked the third applicant for his passport. The latter replied that he had left his passport in the Nenkayev women’s room. The servicemen brought the first and third applicants to that room and took the third applicant’s passport. The women asked the soldiers why they intended to take the third applicant away, but received no answer. Instead the servicemen ordered them to be silent. The servicemen then saw a machine-gun ammunition belt and seized it. Thereafter they covered the third applicant’s mouth with adhesive tape and took him outside.

Then the servicemen left the house and escorted the third applicant and Muslim Nenkayev into the street. Muslim Nenkayev was wearing a red teeshirt, black trousers and running shoes. The first applicant attempted to follow his sons, but the military warned him that they would shoot down any member of the Nenkayev family who attempted to stop them taking Muslim Nenkayev and the third applicant away. The first applicant stayed at the gate watching his two sons being escorted on foot by the servicemen in the direction of the town centre.

ii. The Nenkayev brothers’ detention

Even blindfolded, the third applicant managed to take his bearings and realised that they were walking towards the centre of Urus-Martan, where the Urus-Martan military commander’s office and the Urus-Martan district administration (“the local administrative authority”) were located.

According to the third applicant, they were walking for some 50 minutes. Then he heard a gate being opened. It was an iron gate, like the one in the military commander’s office. They passed through that gate and entered a building. Then the third applicant and his brother were escorted upstairs to the first floor and placed in a cell. The servicemen left the Nenkayev brothers blindfolded and handcuffed and went away.

Some time later the third applicant heard the sound of footsteps from above and realised that there were more than two floors in the building in which they were being held. The third applicant submits that he and his brother had probably been taken to the military commander’s office, since there were only two buildings comprising more than two floors in the centre of Urus-Martan: the military commander’s office and a block of flats, the latter, however, having no fence or gate and being fully occupied by civilians.

While in the cell, the third applicant fell asleep on several occasions. When at some point he called his brother, there was no reply. The third applicant assumed that Muslim Nenkayev must have been taken out of the cell while he was asleep.

Then the third applicant heard the cell door being opened and someone asked him in Russian, without an accent, whether he knew why he had been brought there. The third applicant answered in the negative. Thereafter he was questioned for about twenty or thirty minutes. His questioner told the third applicant that he would be released and that Muslim Nenkayev would be taken to a prosecutor’s office. Thereafter the questioner left.

Some time later the door opened again and the third applicant was ordered to rise. Somebody grabbed the blindfolded and handcuffed third applicant by the collar and escorted him downstairs and then outside. In the street he was put in the back seat of a car and two persons sat at his sides. The car was rather high and the third applicant assumed that it was a UAZ vehicle. The car drove for about fifteen minutes. Then it stopped and the third applicant was taken out and put on the ground, face down. His handcuffs were removed and he was ordered to lie still for ten minutes. After the vehicle had left, the third applicant removed the adhesive tape from his eyes and saw that it was dark in the street. His duty machine gun was lying nearby, but his pistol was missing.

The third applicant returned home at 3 a.m. on 9 June 2002.

The applicants have not seen Muslim Nenkayev since 8 June 2002.

(b) The Government’s account

The Government submitted that the Prosecutor General’s Office had established that at around 1 a.m. on 8 June 2002 unidentified persons wearing camouflage uniforms and masks and armed with machine guns had entered the house at 84 Pervomayskaya Street, Urus-Martan, and kidnapped Muslim Nenkayev and Isa Nenkayev. The latter had been released the following day.

2. Search for Muslim Nenkayev and investigation into his kidnapping

(a) Applications to State authorities

On 8 June 2002 the first applicant went to the authorities, to ascertain the Nenkayev brothers’ whereabouts. He talked to Mr L.G., a deputy head of the local administrative authority, and Mr K., an official of the same authority. The officials stated that the applicants’ relatives had been detained by federal troops. Two months later, however, Mr L.G. and Mr K. retracted their earlier statements.

About a month after Muslim Nenkayev’s detention, the first applicant talked to another deputy head of the local administrative authority, Mr M., who told him that Muslim Nenkayev had been apprehended by the Federal Security Service (“FSB”), the Main Intelligence Department (“GRU”) and servicemen of the Urus-Martan military commander’s office, and then taken to GRU headquarters.

On 15 or 20 July 2002 the first applicant talked to Mr L.-A.G., an FSB officer living in Urus-Martan, who told him that representatives of federal forces, namely the GRU, had been involved in the detention of the Nenkayev brothers.

Since 8 June 2002 the applicants have tried to establish Muslim Nenkayev’s whereabouts and repeatedly applied to various State agencies, including prosecutors’ offices at different levels, the Urus-Martan district department of the interior (“the ROVD”), the local administrative authority, the Urus-Martan military commander’s office, the Chechen Department of the FSB and other authorities. In their letters to the authorities the applicants referred to the facts of the kidnapping of Muslim Nenkayev and the third applicant and asked for assistance and details of the investigation. Mostly their enquiries remained unanswered, or only formal replies were given according to which the requests had been forwarded to various prosecutor’s offices “for examination”.

On 8 July 2002 the South Federal Circuit Department of the Prosecutor General’s Office informed the first applicant that his request to establish his son’s whereabouts had been transmitted to the prosecutor’s office of the Chechen Republic (“the Chechnya prosecutor’s office”).

On 15 July 2002 the Chechen Department of the FSB notified the first applicant that his query had been sent to the military prosecutor of military unit no. 20102 (“the unit prosecutor’s office”).

On 17 July 2002 the Chechnya prosecutor’s office forwarded the first applicant’s complaint about the detention the Nenkayev brothers and subsequent disappearance of Muslim Nenkayev to the prosecutor’s office of the Urus-Martan District (“the district prosecutor’s office”).

On 15 August 2002 the district prosecutor’s office instituted criminal proceedings in connection with “the kidnapping of Isa and Muslim Nenkayev by unidentified persons in camouflage uniforms”, under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). The file was assigned the number 61116. On the same date the first applicant was notified of that decision.

On 19 August 2002 the unit prosecutor’s office informed the first applicant that law-enforcement agencies of Urus-Martan had not carried out any special operations in June 2002.

On 10 September 2002 the National Public Commission for Investigation of Offences and Protection of Human Rights in the North Caucasus requested the military prosecutor’s office of the North Caucasus Circuit (“the North Caucasus prosecutor’s office") to investigate the first applicant’s allegations of the kidnapping of Muslim Nenkayev by armed federal servicemen in masks and camouflage uniforms, and carry out a search for him.

On 25 September 2002 the North Caucasus prosecutor’s office sent the above request to the unit prosecutor’s office “for a thorough investigation”.

On 4 April 2003 the first applicant asked the district prosecutor’s office for news of recent developments in case no. 61116. In reply, the latter informed him on 11 April 2003 that the preliminary investigation into the kidnapping of Muslim Nenkayev instituted on 15 August 2002 had been suspended on 15 October 2002 for failure to identify the culprits, and that an active search for Muslim Nenkayev and those involved in his kidnapping was under way.

By letter of 25 April 2003 the North Caucasus prosecutor’s office informed the first applicant that his request concerning the search for Muslim Nenkayev had been referred to the military prosecutor’s office of the United Group Alignment (“the UGA prosecutor’s office”).

On 8 May 2003 the Chief Military Prosecutor’s Office forwarded the applications of several residents of Chechnya relating to the disappearance of their relatives, including that of the first applicant, to the UGA prosecutor’s office for examination.

On 12 May 2003 the UGA prosecutor’s office sent the first applicant’s request to the unit prosecutor’s office. On the same date the South Federal Circuit Department of the Prosecutor General’s Office informed the first applicant that they had transmitted his complaint about the unlawful detention and subsequent disappearance of his son to the Chechnya prosecutor’s office.

By letter of 9 June 2003 the Chechnya prosecutor’s office instructed the district prosecutor’s office to conduct “a thorough and full investigation” into the circumstances of the kidnapping of Muslim Nenkayev and the third applicant and verify whether military personnel had been involved.

On 17 June 2003 the unit prosecutor’s office notified the first applicant that no involvement of military personnel in the kidnapping of his son had been established.

On 11 July 2003 the UGA prosecutor’s office transmitted the applications of the first applicant and several other residents of Chechnya concerning the kidnapping of their relatives to the unit prosecutor’s office and asked if there was any information concerning the whereabouts of those missing persons and whether military servicemen had participated in their kidnapping.

On 15 July 2003 the Chechnya prosecutor’s office, in reply to the first applicant’s complaint about the inactivity of the district prosecutor’s office, informed him that the criminal proceedings instituted on 15 August 2002 in respect of the kidnapping of his son and suspended on 15 October 2002 had subsequently been resumed on 15 July 2003, since the investigation had been incomplete. The letter also stated that the term for the preliminary investigation had been extended until 15 August 2003, that the search for Muslim Nenkayev and those responsible for his disappearance was in progress and that the Chechnya prosecutor’s office was closely supervising the investigation.

By letters of 1 and 19 August 2003 the first applicant requested the district prosecutor’s office to inform him of the latest developments in the investigation.

On 25 August 2003 the first applicant complained to the Chechnya prosecutor’s office that the investigation into the disappearance of his son had been suspended on 25 July 2003, that is before the time-limit for the preliminary investigation had expired on 15 August 2003, and inquired about the results of the investigation.

On 15 September 2003 the Chechnya prosecutor’s office notified the first applicant that the investigation had been resumed on 12 September 2003 and that investigative measures were being taken to find Muslim Nenkayev and the culprits.

Between August and October 2003 the first applicant tried on four occasions to talk to the head of the ROVD, but the latter was unavailable. At the beginning of October 2003 the first applicant talked to an officer of the ROVD who said that he was trying to find out whether Muslim Nenkayev was being held in any prison, and that he had not achieved any results so far. At some point in October 2003 the first applicant also talked to a deputy military commander of Urus-Martan, who reassured him that the search for his missing son was in progress and that he would be notified of any results.

On 21 April 2004 the first applicant requested the district prosecutor’s office to take certain investigative measures and to transfer the case file to a military prosecutor’s office.

On 10 July 2004 the Chechnya prosecutor’s office forwarded the first applicant’s complaint to the district prosecutor’s office.

On 19 August 2004 the unit prosecutor’s office informed the applicants that they had carried out an inquiry into the Nenkayev brothers’ kidnapping, which had established no traces of any involvement of military personnel.

On 30 November 2004 the district prosecutor’s office informed the first applicant that in the course of the investigation into the Nenkayev brothers’ kidnapping various measures had been taken but had brought no results.

On 30 June 2005 the first applicant requested the district prosecutor’s office to update him on progress in the investigation and to resume the proceedings if they had been suspended.

On 28 July 2005 the district prosecutor’s office informed the first applicant that the investigation had been resumed.

On 15 November 2005 the first applicant again requested information on the investigation from the district prosecutor’s office.

On 16 January 2006 the district prosecutor’s office informed the first applicant that the investigation had been resumed.

On 16 January 2006 the second applicant was questioned by an investigator of the district prosecutor’s office. She claimed that certain items had been stolen from her house on the night of her sons’ kidnapping. The investigator refused to insert that piece of information into the record. On the same date the investigator questioned the tenth applicant, who described the circumstances of the Nenkayev brothers’ kidnapping and submitted that the perpetrators had stolen her leather waistcoat, her husband’s leather jacket and other items. According to the tenth applicant, the investigator did not include that information in the record.

On 3 March 2006 the second and tenth applicants requested the Chechnya and district prosecutors’ offices to investigate the theft of their belongings on the night of their relatives’ kidnapping.

On 6 March 2006 the district prosecutor’s office granted the tenth applicant the status of victim of a crime in case no. 61116 as her belongings had been stolen on the night of 7 to 8 June 2002.

(b) Information submitted by the Government

Despite a specific request by the Court the Government did not submit a copy of the entire file in criminal case no. 61116, providing copies of decisions to suspend and resume the investigation and to grant victim status, as well as copies of records of interviews. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Russian Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings.

On 15 August 2002 the district prosecutor’s office opened criminal investigation file no. 61116 into the kidnapping of Muslim Nenkayev and the third applicant, under Article 126 § 2 of the Russian Criminal Code (“aggravated kidnapping”).

On 9 September 2002 the district prosecutor’s office granted the first applicant victim status in the criminal investigation.

On 13 September 2002 the district prosecutor’s office questioned the third applicant. He described the circumstances of the crime and submitted that his duty gun had been stolen.

On 15 October 2002 the district prosecutor’s office suspended the investigation in case no. 61116 for failure to identify those responsible, informed the first applicant and instructed the police to carry out certain investigative measures.

On 22 June 2003 the district prosecutor’s office quashed the decision of 15 October 2002 and resumed the investigation. On 25 June 2003 the first applicant was informed of that decision.

On 2 July 2003 the district prosecutor’s office sent requests for information concerning Muslim Nenkayev to several penitentiary facilities and law-enforcement agencies in the Urus-Martan District.

On 25 July 2003 the district prosecutor’s office suspended the investigation and informed the first applicant of it.

On 12 September 2003 the investigation in case no. 61116 was resumed.

On 1 October 2003 the district prosecutor’s office sent requests concerning Muslim Nenkayev to several penitentiary institutions located in the south of Russia. No relevant information was received in reply.

On 12 October 2003 the district prosecutor’s office again suspended the investigation.

On 10 November 2003 the Chechnya prosecutor’s office quashed the decision of 12 October 2003 and resumed the investigation.

On 15 and 16 November 2003 the district prosecutor’s office questioned as witnesses the second and fourth applicants, respectively.

On 13 December 2003 the district prosecutor’s office suspended the investigation and instructed the ROVD to search for Muslim Nenkayev more actively.

On 28 July 2005 the district prosecutor’s office resumed the investigation. On the same date they ordered the ROVD to find witnesses of the Nenkayev brothers’ kidnapping.

On 1 August 2005 the district prosecutor’s office questioned the first applicant as a witness.

On 28 August 2005 the investigation was again suspended.

On 15 November 2005 the district prosecutor’s office questioned the second applicant. She submitted that on the night of 8 June 2002 she had been awakened by unidentified armed men who had then taken her sons away.

On 16 November 2005 the district prosecutor’s office resumed the proceedings at the first applicant’s request.

On 17 November 2005 the district prosecutor’s office suspended the investigation for failure to identify the perpetrators.

On 13 January 2006 the Chechnya prosecutor’s office quashed the decision of 17 November 2005 and resumed the proceedings.

On 16 January 2006 the investigation in case no. 61116 was extended to an offence under Article 226 § 3 of the Russian Criminal Code (“theft of weapons”) on account of the theft of the third applicant’s gun.

On 16 January 2006 the district prosecutor’s office questioned as witnesses the second, third and fourth applicants. They also questioned several relatives and acquaintances of the Nenkayev brothers, who said that they had no precise information concerning the perpetrators’ identities; nor could they confirm that any belongings had been stolen from the Nenkayevs.

On 16 January 2006 the district prosecutor’s office questioned the head of the Urus-Martan administration, Mr K., and his deputy. They did not confirm that they had been aware of the Nenkayev brothers’ kidnapping; nor did they confirm the fact that the applicants had complained to them about it. Further, Mr L.-A.G. who, according to the first applicant had been an FSB officer, denied that he had known anything about the kidnapping and submitted that he had never been an officer of any law-enforcement agency.

On 20 February 2006 the seventh applicant was questioned.

On 16 February 2006 the district prosecutor’s office suspended the investigation in case no. 61116. On the same date the decision on suspension was quashed and the investigation resumed. The first applicant was informed of both decisions.

3. Judicial proceedings against investigators

On 15 April 2003 the first applicant lodged a complaint against the district prosecutor’s office with the Urus-Martan Town Court (“the Town Court”). He complained of the authorities’ failure to conduct an effective investigation into the kidnapping of his sons and sought to have the decision of 15 October 2002 to suspend the investigation quashed and the criminal proceedings in case no. 61116 resumed.

On 31 December 2003 the first applicant requested the Town Court to notify him of the date on which his complaint of 15 April 2003 would be examined.

On 1 March 2004 the first applicant went to the Town Court and enquired about his complaint. He did not manage to meet the judge, who was absent, but talked to officials of the Town Court’s registry who told him that on 19 April 2004 a letter had been sent to his address. The officials were unable to provide any information as to the contents of that letter.

On 25 January 2006 the first applicant went to see the president of the Town Court. The latter said that the complaint about the investigators had not been examined because of a fire in the Town Court’s building, and requested that the first applicant provide him with a copy of the complaint. On the following day the first applicant delivered the required copy to the president of the Town Court.

COMPLAINTS

1. The applicants complained under Article 2 of the Convention of a violation of the right to life in respect of their relative, Muslim Nenkayev. The applicants submitted that the circumstances of his disappearance and the long period during which his whereabouts could not be established suggested that Muslim Nenkayev had been killed by State agents. The applicants also claimed that the State had failed to comply with its positive obligation to protect Muslim Nenkayev’s life. Finally, they complained that no effective investigation had been conducted into their relative’s disappearance.

2. The applicants complained under Article 3 of the Convention that Muslim Nenkayev had probably been subjected to torture and inhuman treatment while in detention and that no effective investigation had been conducted to establish the truth of the matter. Under this head the applicants also submitted that they had suffered severe mental distress and anguish in connection with the disappearance of their close relative and on account of the State’s failure to conduct a thorough investigation into that disappearance, and that as a result the first two applicants’ health had drastically deteriorated after Muslim Nenkayev’s disappearance.

3. The applicants maintained that the provisions of Article 5 of the Convention as a whole, relating to the lawfulness of detention and guarantees against arbitrariness, had been violated in respect of Muslim Nenkayev and the third applicant. First, the detention of Muslim Nenkayev and the third applicant had not fallen within one of the grounds set out in Article 5 § 1 of the Convention and had not complied with the procedure prescribed by law. Moreover, no record of their arrest had been made. Secondly, they had not been informed promptly of the reasons for their arrest or the charges against them. Furthermore, the detention of Muslim Nenkayev and the third applicant had not been duly authorised and they had not been released within a reasonable time pending trial. Finally, the third applicant complained under Article 5 § 5 of the Convention that he was unable to obtain compensation for his unlawful detention.

4. The applicants complained under Article 6 § 1 of the Convention that under national law they were barred from lodging a civil claim to obtain compensation for Muslim Nenkayev’s unlawful detention or death pending the outcome of the criminal investigation.

5. The applicants maintained that the detention of their close relative, Muslim Nenkayev, constituted an unlawful and unjustified interference with their family life, in breach of Article 8 of the Convention. The applicants further complained that their right to respect for their home had been infringed by the intrusion of Russian servicemen into their house and the ensuing search on the night of 7 to 8 June 2002.

6. The applicants alleged the absence of any effective remedies in respect of their above complaints, contrary to Article 13 of the Convention.

7. The applicants invoked Article 14 of the Convention, stating that the above violations had occurred because of their Chechen ethnic origin and residence in Chechnya.

8. Finally, in their observations of 10 April 2006 the applicants submitted that the Government’s failure to disclose the documents from the criminal investigation file at the Court’s request constituted a failure to comply with their obligations under Articles 34 and 38 § 1 (a) of the Convention.

THE LAW

I. ALLEGED ABUSE OF THE RIGHT OF PETITION

The Government submitted that the applicants’ allegation of discrimination by State agents had been clearly unfounded and that the applicants had deliberately attempted to substitute the Court for domestic judicial bodies. In their view, such behaviour constituted an abuse of the right of petition within the meaning of Article 35 § 3 of the Convention. The Government therefore proposed that the application be rejected on that ground.

The applicants contested the Government’s argument and submitted that their complaints to the Court concerning grave violations of human rights could not be interpreted as an abuse of their right of petition.

The Court reiterates that a finding of abuse might be made in such circumstances if it appeared that an application was clearly unsupported by evidence or outside the scope of the Convention, or if the application was based on untrue facts in a deliberate attempt to mislead the Court (see G. J. v. Luxembourg, no. 1156/93, Commission decision of 22 October 1996). The Court is unable to interpret the fact that the applicants considered themselves to be the victims of discrimination or the fact that they pursued the Convention remedy as an abuse of the right of petition. The Government’s objections must therefore be dismissed.

II. exhaustion of domestic remedies

The Government contended that the application should be declared inadmissible pursuant to Article 35 § 1 of the Convention since the applicants had not availed themselves of the domestic remedies which they had unreasonably considered ineffective. They argued that it had been open to the applicants to claim damages in the course of civil proceedings and to challenge in court any actions or omissions of any authorities during the investigation.

The applicants contested the Government’s submissions that they had not complained about the investigators’ actions to domestic courts and insisted that they had done so in April 2003 but their complaint had not been examined. In any event, they submitted that in the Chechen Republic a court appeal against a decision of an investigator was ineffective as a remedy. The applicants further argued that the civil remedies relied on by the Government could not be considered effective since claims for damages would only be examined by domestic courts upon completion of the criminal investigation.

The Court notes that the Russian legal system provides, in principle, two avenues of recourse for the victims of illegal and criminal acts attributable to the State or its agents, namely civil and criminal remedies.

As regards a civil action to obtain redress for damage sustained through the alleged illegal acts or unlawful conduct of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention. A civil court is unable to pursue any independent investigation and is incapable, without the benefit of the conclusions of a criminal investigation, of making any meaningful findings regarding the identity of the perpetrators of fatal assaults, still less to establish their responsibility (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-121, 24 February 2005, and Estamirov and Others v. Russia, no. 60272/00, § 77, 12 October 2006). In the light of the above, the Court confirms that the applicants were not obliged to pursue civil remedies. The objection in this regard is thus dismissed.

The Court considers that the question of exhaustion of domestic criminal-law remedies is so closely linked to the merits of the case that it is inappropriate to determine it at the present stage of the proceedings. The Court therefore decides to join this part of the objection to the merits.

III. Merits of the application

1. The applicants complained under Article 2 of the Convention of a violation of the right to life in respect of Muslim Nenkayev and of the authorities’ failure to conduct a proper investigation. Article 2 of the Convention reads as follows:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

According to the Government, it was not established that Muslim Nenkayev’s right to life had been breached by any State agent. The investigation had been in compliance with Article 2 of the Convention.

The applicants argued that it was beyond reasonable doubt that Muslim Nenkayev had been killed by representatives of federal forces after his kidnapping. The applicants stressed that their relative had been apprehended in life-endangering circumstances and argued, relying on Article 2 of the Convention, that the fact that he had remained missing for more than forty-six months proved that he had been killed. The applicants also claimed that the authorities had failed in their obligation to carry out an effective investigation into the circumstances of Muslim Nenkayev’s disappearance. They argued that the investigation had fallen short of the requirements of domestic law and the Convention standards. In particular, it had been pending for almost four years without any tangible results so far, having been repeatedly suspended and resumed. The authorities had failed to promptly update the applicants on any progress made in the investigation.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicants complained that Muslim Nenkayev had been subjected to treatment in violation of Article 3 of the Convention and that the authorities had failed to investigate the ill-treatment. They further complained that the anguish and distress suffered by them as a result of their relative’s disappearance and the authorities’ reaction amounted to treatment in violation of Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Government submitted that the investigation had been conducted in compliance with Article 3 of the Convention and had produced no evidence that either the applicants or Muslim Nenkayev had been subjected to treatment prohibited by the above Convention provision.

The applicants maintained their complaint regarding alleged ill-treatment of Muslim Nenkayev and their moral suffering.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3. The applicants complained that Muslim Nenkayev and the third applicant had been deprived of their liberty in violation of Article 5 of the Convention. The relevant parts of Article 5 provide:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

The Government submitted that the Nenkayev brothers had never been arrested or kept in any detention facility and thus had not been deprived of their liberty in violation of Article 5 of the Convention.

The applicants insisted that Muslim Nenkayev and the third applicant had been placed in unlawful unregistered detention and thus had been arbitrarily deprived of their liberty in violation of Article 5 of the Convention.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

4. The applicants complained under Article 6 § 1 of the Convention that they were unable to bring civil proceedings for compensation for Muslim Nenkayev’s unlawful detention or death until the investigation was completed. Article 6 § 1 of the Convention, in so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

The Government argued that there had been no interference with the applicants’ right of access to a court and that it was open to the applicants to lodge a civil claim for compensation with the domestic courts.

The applicants contested the Government’s argument and submitted that, for unknown reasons, their complaint about the investigators’ inaction had never been examined by the Town Court.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

5. The applicants complained under Article 8 of the Convention that Russian servicemen had unlawfully entered their house and searched it. Article 8 of the Convention reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Government submitted that the applicants had not complained about the search to the prosecutors’ offices.

The applicants contested the Government’s argument and submitted that they had informed the district prosecutor’s office that some household items had been stolen from them. They referred to the interviews with the Nenkayev family members of 16 January 2006.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

6. The applicants complained under Article 13 of the Convention that they had had no effective remedies in respect of the alleged violations of the Convention. Article 13 of the Convention reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government contended that the applicants had had effective domestic remedies as required by Article 13 of the Convention. For instance, they could have brought civil claims for compensation in respect of non-pecuniary damage. The Government submitted that the Russian authorities had not prevented the applicants from using those remedies.

The applicants contested the Government’s submissions. They argued that they had lodged a complaint with the Town Court, which had not been examined. They further referred to the administrative practice of non-compliance with the obligation to investigate crimes that had existed at the relevant time in the Chechen Republic, which, in their view, rendered all potential remedies ineffective.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

7. The applicants relied on Article 14 of the Convention, stating that they had been discriminated against in the enjoyment of their Convention rights on account of their Chechen ethnic origin and residence in Chechnya. Article 14 of the Convention reads as follows:

“The enjoyment of the right and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Government submitted that the ongoing investigation provided no evidence to support the applicants’ allegations in that regard. The applicants reiterated their complaint.

The Court observes that no evidence has been submitted that the applicants were treated differently from persons in an analogous situation without objective and reasonable justification, or that they have ever raised this complaint before the domestic authorities. It thus finds that this complaint has not been substantiated. Accordingly, this part of the application is manifestly ill-founded and should be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to join to the merits the Government’s objection concerning non-exhaustion of domestic remedies;

Declares admissible, without prejudging the merits, the complaints under Articles 2, 3, 5, 6, 8 and 13 of the Convention;

Declares inadmissible the remainder of the application.

Søren NielsenChristos Rozakis
RegistrarPresident

Full & Egal Universal Law Academy